Rectification
Author | Nasreen Pearce |
Pages | 115-131 |
Chapter 9
Rectification
9.1 INTRODUCTION
Rectification of a document is an equitable remedy which empowers the court to give effect to the intention of a party or parties by correcting, omitting, modifying or amending a document. The court’s power to rectify a will is, in the main, statutory and fairly recent. Before 1983, if a will did not record the testator’s/ testatrix’s intention, the remedy was to challenge the will on lack of knowledge and approval so as to exclude the will from probate or, if there was a genuine mistake, to correct the error through the process of construction and so as to interpret the words or to omit a mistake. The court’s use of this remedy in cases relating to wills was very limited. The need was recognised for rectification as a remedy which was appropriate and should be available to give effect to the intention of a testator/testatrix where there had obviously been an error. It was introduced, among other provisions which applied to wills, in section 20 of the Administration of Justice Act 1982 and came into force on 1 January 1983.
The court’s power to rectify a will does not mean that it has the power to rewrite a will. See for example Jump and Another v Lister and Another [2016] EWHC 2160 (Ch), where the dispute related to mirror wills executed by a married couple who were found dead in their home with no indication of who died first, and the issue related to the commorientes rule under section 184 of the Law of Property Act 1925. This remedy is available in probate cases only when there is an issue on the construction or interpretation of the terms of the will which suggests that the will is ambiguous, uncertain, obscure or meaningless, or that the intentions of the testator/testatrix have been misunderstood. It is usual when the will appears to be ambiguous to apply to the court to determine the meaning/interpretation of the terms in the will and also for rectification. This often arises when there may be an overlap between how the court interprets the term(s) in question and whether it is then necessary to rectify the error to give effect to the intention of the testator/testatrix. The court’s interpretation of the ambiguous terms may resolve the issue without the need for rectification. The application in the main is made by the executors, but there may be cases where conflict between
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beneficiaries and the executor on the interpretation of a will results in a beneficiary issuing a claim. The rise in the use of information technology, the availability of standard precedents in electronic form and the facility to copy and paste clauses into a client’s will means that rectification is the first option to be considered when an error is discovered in drafting, where there is a misunderstanding of the instructions of the testator/testatrix or where a mistake is made in the execution of a will. This occurred in Marley v Rawlings and Another [2011] EWHC 161 (Ch) where, by mistake, a couple executed each other’s wills and neither the solicitor nor the assistant who witnessed the attestation noticed the mistake at the time. It is, therefore, not surprising that when a mistake or error is discovered, legal advisers are under pressure to advise rectification as the obvious and first choice rather than a claim in negligence against the original solicitors.
Some of the issues of construction which may arise where clarification is required are considered in Chapter 2. While section 20 of the Administration of Justice Act 1982 provides the remedy, section 21 provides the means by which the court is able to ascertain the testator’s/testatrix’s intentions. Section 21 gives the court power to permit extrinsic evidence to be introduced and relied on to resolve the issues and to ascertain the intentions of the testator/testatrix. The statutory provisions and the basic principles are dealt with in this chapter.
9.2 SECTIONS 20 AND 21 OF THE ADMINISTRATION OF JUSTICE ACT 1982
Section 20(1) of the Administration of Justice Act 1982 provides:
(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—
(a) of a clerical error; or
(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions.
A person’s right to seek rectification of a will is limited to the two specific grounds and then only if it can be established that the will as read in its literal sense does not give effect to the testator’s/testatrix’s intentions. Proof of the testator’s/testatrix’s intention may be established by evidence such as drafts of the will, as occurred in Re Segelman Deceased [1996] Ch 171 (discussed in para 9.3), evidence from a solicitor and anything recorded in any document or of the way the testator/testatrix dealt with his/her property to give effect to his/her intention (see Joshi v Mahida [2013] EWHC 486 (Ch)). It will be appropriate to
seek rectification where the testator/testatrix or the draftsman omitted or included something in error in the will or the draftsman has misunderstood the testator’s/ testatrix’s instructions. The court’s powers of rectification are also limited to carrying out such intentions. Further limitations are imposed by way of time limits within which a claim for rectification should be made, which provide protection from liability to the personal representative if he/she distributed any part of the estate after the end of the limitation period.
Section 20(2)–(4) of the Administration of Justice Act 1982 provides that:
(2) An application for an order under this section shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.
(3) The provisions of this section shall not render the personal representatives of a deceased person liable for having distributed any part of the estate of the deceased, after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out, on the ground that they ought to have taken into account the possibility that the court might permit the making of an application for an order under this section after the end of that period; but this subsection shall not prejudice any power to recover, by reason of the making of an order under this section, any part of the estate so distributed.
(4) In considering for the purposes of this section when representation with respect to the estate of a deceased person was first taken out, a grant limited to settled land or to trust property shall be left out of account, and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.
Section 21(1) and (2) provides that:
(1) This section applies to a will—
(a) in so far as any part of it the will is meaningless;
(b) in so far as the language used in any part of it is ambiguous on the face of it;
(c) in so far as evidence, other than the evidence of the testator’s intentions, shows that the language used in any part of it is ambiguous in the light of the surrounding circumstances.
(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.
(See further paras 9.3–9.8.)
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9.3 CLERICAL ERROR
What is meant by a ‘clerical error’ is not defined in the Administration of Justice Act 1982, but a study of case law provides a useful guide. Of the earlier cases, much referred to are Wordingham v Royal Exchange Trust Co [1992] 1 Ch 412 and Re Segelman Deceased [1996] Ch 171.
Re Segelman Deceased [1996] Ch 171 provides the guidelines which the court now applies and which are likely to be the most helpful in preparing a case for rectification. In this case, Chadwick J set out three questions which a court needs to ask when rectification is being sought to remedy the terms of a will, to determine whether the application is within the requirements of section 20(1) of the Administration of Justice Act 1982 (at 186D):
The subsection requires the court to examine three questions. First, what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either
(a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.
This test has been approved by the Court in numerous cases, for example Bell v Georgiou and Another [2002] EWHC 1080 (Ch), Pengelly v Pengelly [2007] EWHC 3227 (Ch) and Sprackling and Others v Sprackling and Another [2008] EWHC 2696 (Ch), and also in the cases referred to below.
In Re Segelman Deceased [1996] Ch 171, the testator’s wish was to set up a trust for those members of his family who were in need. The draftsman, however, added a substitution clause but omitted...
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